ALS Society of Essex County v. City of Windsor

Posted October 11, 2016

In this class action, the plaintiff, Amyotrophic Lateral Sclerosis Society of Essex County (“ALS Society of Essex County”), alleges that The Corporation of the City of Windsor (“City of Windsor”) has been charging excessive lottery licensing and lottery administration fees (“lottery fees”) to organizations who participate in fundraising through charity bingo and other charity lotteries. The plaintiff alleges that the lottery fees are so excessive that they have become a form of unconstitutional taxation. The action claims for an accounting and disgorgement (the return) of all lottery fees paid to the City of Windsor on or after October 24, 1993 found to be levied without authority or ultra vires and, in the alternative restitution (a refund) of all lottery fees that have been received by the City of Windsor since October 24, 1993.

ATTENTION CLASS MEMBERS

This action is certified. The opt-out and reconsideration periods are now closed. If you opted-out before May 15, 2016 at 11:59 p.m., did not revoke your opt-out before October 10, 2016 at 11:59 p.m. and fall within the class definition, you are a class member. If you are a class member, please ensure that we have your current contact information and that you keep our offices informed of any changes in your contact information.

The class definition is: All persons, whether natural (including unincorporated associations) or corporate, who have paid lottery licensing fees and lottery administration fees to the Corporation of the City of Windsor on or after October 24, 1993. The class contains a “subclass” which is made up of class members who paid fees between October 24, 1993 and October 23, 2002 and between January 1, 2004 and October 23, 2006.

The parties are now proceeding with the discovery phase. There are various interlocutory motions proceeding and contemplated.

Procedural History

This action has been proceeding with another similar action against the Corporation of the Town of Tecumseh.

CERTIFICATION:

These actions were certified as class actions in January 2011 but Justice Patterson limited the claims for restitution to lottery fees that had been paid after 2006. (January 20, 2011 Certification Reasons)

The plaintiffs successfully appealed that time restriction to the Divisional Court. (Reasons of the Divisional Court, April 25, 2012) The Divisional Court remitted the motion back to Justice Patterson, and asked him to reconsider the certification motion in light of the Divisional Court’s legal finding that the plaintiffs were not barred, as a matter of law, from pursuing claims prior to 2006.

Following the plaintiffs successful appeal to the Divisional Court, the Divisional Court declined to award any costs to the plaintiffs for the appeal. The plaintiffs appealed that decision to the Court of Appeal for Ontario, which ordered that the plaintiffs were entitled to costs. (Reasons of the Court of Appeal on Costs) The defendants sought leave to appeal that decision to the Supreme Court of Canada. The Supreme Court of Canada dismissed the defendants’ application for leave to appeal on October 3, 2013. (Judgment of the Supreme Court of Canada)

The rehearing of the certification motion was held in November, 2012 and Justice Patterson again certified the claims as class actions. Justice Patterson agreed that the plaintiffs should be permitted to pursue claims for all lottery fees paid to the City of Windsor and the Town of Tecumseh since 1990. (December 31, 2012 Re-Hearing Certification Reasons)

The defendants sought leave to appeal that decision, again to the Divisional Court. That hearing was heard in Windsor on July 15, 2013 before Justice M. Nolan. On October 30, 2013 Justice Nolan released her decision in which she allowed the defendants’ motion and granted them leave to appeal to the Divisional Court (Reasons of Justice Nolan granting leave to appeal).

The Divisional Court heard the appeal on April 28, 2014. The Court dismissed the appeal and upheld Justice Patterson’s decision, in which he held that the plaintiffs can pursue a class action seeking repayment of all lottery fees paid to the City of Windsor and the Town of Tecumseh since 1990. (Reasons of the Divisional Court, May 1, 2014)

The defendants further appealed to the Court of Appeal for Ontario. The Court of Appeal agreed that the plaintiffs should be able to pursue these claims as class actions, but slightly reduced the time period covered by the claims, holding that the plaintiffs are permitted to pursue claims for the 15 years prior to commencement of the action in October, 2008. (Reasons of the Court of Appeal on Certification)

OPT-OUT PERIOD:

On January 16, 2016, the City of Windsor and the Town of Tecumseh commenced an aggressive and extensive multi-media opt-out campaign intended to discourage potential claimants from pursuing their claims in this class action. The plaintiffs brought an emergency motion regarding the opt-out campaign. By reasons dated January 29, 2016, the Court found that the defendants’ opt-out campaign went over the line. The Court found that the opt-out campaign contained misinformation and that its effect created undue influence. The Court made a number of orders including that there be no further information from the defendants concerning the opt-out campaign and that information and communications about the opt-out campaign that already exist may remain in place.

The Court also ordered that any potential claimants who opted out shall have an opportunity to reconsider their position at the end of the opt-out period. The opt-out period ended on May 15, 2016 at 11:59 p.m. The reconsideration period ran from August 11, 2016 until October 10, 2016 at 11:59 p.m. The reconsideration period is now over.

The defendants attempted to appeal the January 29, 2016, decision to the Court of Appeal for Ontario. The representative plaintiffs brought a motion to quash the defendants’ appeals to the Court of Appeal on the basis that the appeals should have been brought to the Divisional Court. On February 25, 2016, the Court of Appeal agreed with the position of the representative plaintiffs. The Court of Appeal quashed the defendants’ appeals and ordered costs in the amount of $5,000. The representative plaintiffs started a cross-appeal in the Divisional Court requesting that the Court grant additional relief to address the defendants’ unlawful conduct. Both the defendants’ appeals and the representative plaintiffs’ cross-appeals proceeded in the Divisional Court on March 15, 2016.

By reasons dated March 24, 2016, the Divisional Court refused to grant leave to appeal to both the defendants and the representative plaintiffs. In so doing the Divisional Court found that the Court’s finding of “undue influence” with respect to the defendants’ Opt-Out Campaign was correct. In addition, the Divisional Court found that the discretionary remedy fashioned by the Court was appropriate and correct in the circumstances.

As a result of being advised of new information that was disseminated by the defendants in respect of the opt-out campaign after January 29, 2016, the representative plaintiffs’ brought a motion that the City of Windsor and Town of Tecumseh were in breach of the Order dated January 29, 2016 and therefore in contempt of court. The motion for contempt was based on the broadcasting of two radio advertisements which were aired for the first time after the Order dated January 29, 2016 and as a result of an interview given by the Mayor of the City of Windsor after January 29, 2016. This motion was heard on April 7, 2016. By reasons dated April 14, 2016, the Court dismissed the motion. Leave to appeal this decision was denied by reasons dated September 22, 2016.

This website provides only general information about‎ this class action. While it is not always current, it is updated from time to time as information becomes available.

This website is not designed to and does not provide legal advice or answer legal questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice for your individual situation. This website does not replace independent legal advice.

Providing information through this website does not make you a client of Lerners LLP or our co-counsel, does not create a solicitor-client, fiduciary or other form of relationship, and does not make you a member of the class. Whether or not you are a class member is determined by court order. Any information you provide will not be privileged, confidential or private. The information you provide may assist in prosecuting this matter as a class action and assessing damages for the class overall.

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